Anthony Andreano is a Will County Divorce Lawyer with offices in downtown Joliet next to the courthouse - He is an attorney with 20 years of courtroom experience handling family law matters including uncontested and contested divorces, child support, custody and visitation disputes, alimony, property division, paternity issues, post divorce and other family law matters. Call for a consultation at (815) 954-8175 or visit us online at the link below:

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Wednesday, February 25, 2015

Grandparent Visitation in Illinois

Grandparent visitation in Illinois, and the rest of the
country has been something of a tennis match. The state legislatures, who were
voted in office (by a large majority older people who happened to also be
grandparents) have pushed for legislation that grants grandparents rights of
visitation with their grandchildren in certain circumstances. The problem with
that, is many of these statutes have interfered with the constitutional protections
of parental rights. The constitution creates a presumption that parents are fit
and act in the best interests of their children and that they have the
fundamental right to make child-rearing decisions. So said the US Supreme Court
in Troxel, 530 U.S. 57, 120 S. Ct.
2054 (2000). However the US Supreme Court did not strike down every grandparent
visitation rights law in the land. It did say that these laws need to properly
factor in parents fundamental rights before the state is justified in getting
involved with child-rearing decisions.

At least as of the writing of this article, there is in
place a grandparent statute in Illinois, 750 ILCS 5/607(b)(1). The law factors
in a parent’s fundamental rights by putting some rather strict rules in place
before a grandparent can even move forward. The first is having at least some
basic facts in place before the court even lets a grandparent seek visitation.

The
case must be filed in the county where the child resides AND

The
child in question must be over the age of one AND at least one of the following
applies:

the
child's other parent is deceased or has been reported missing to the police for
at least 3 months.

a parent of the child has been declared incompetent
by a judge;

a
parent has been in jail or prison for at least 3 months;

the
child's parents are divorced, legally separated or involved in divorce or
custody proceedings and at least one parent does not object to the grandparent
visitation;

the
child was born out of wedlock, the parents are not living together, and the persons
seeking visitation is a maternal grandparent or the paternal grandparent if
paternity has been established in court.

Note that this is a summary of some of the rules and there
are exceptions and other conditions! Also, while I mention grandparents above,
they are not the only persons covered. Great-grandparents, siblings and step-parents
can also seek visitation under the law. Step-parents have some separate
requirements to meet as well.

But we are not done. The statute continues to stack the deck
against these individuals by not only putting the above rules in place but also
by creating a rebuttable presumption that a fit parents actions and decisions
regarding visitation are not harmful to the child’s mental physical or
emotional health. This is yet another hurdle to overcome. In order to get over
that presumption, the grandparent must prove that the parent’s decision
regarding visitation is harmful to the child’s mental, physical or emotional
health. It’s a tough and strict barricade to protect against the state (i.e.
the judge) intervening in matters of parent’s constitutional right. Once all of
those hurdles are met and if the court allows the grandparent’s case to continue,
the court will then look at nearly a dozen factors to further assess whether
grandparent visitation is to be allowed over a parent’s objection.

So far Illinois grandparent visitation law remains in force
and to navigate through it or against it, a careful analysis of the statute and
case law interpreting it must be done in each situation. I have seen where
judges (often older themselves) are very sympathetic to grandparents. No doubt
when the parents themselves are very young, courts look for stability for small
children and young parents cannot always offer that. Often it is the
grandparents of these children that can provide stability. Thus a judge looking
at the best interests of the children may be inclined to look toward the
grandparents. However, just because a grandparent’s home may be the best place
for a child, doesn’t meant the child should live there given a parent’s fundamental
rights.

If you face this situation, consult an attorney as this
article only touches on the general state of the law and is not a full or
complete analysis. Finally, as stated above, it is also an area of the law that
can change quickly.

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Anthony Andreano, Will County Divorce Attorney

Anthony Andreano is a Will County divorce attorney practicing in Joliet, Illinois handling all types of family law cases including custody, property division, child support, maintenance/alimony, visitation disputes, paternity and grandparent rights cases. I have been in practice for over 16 years and my cases are limited to those pending in Will County with some litigation in Grundy County. Law Office located at: 58 N Chicago Street Suite 506 Joliet, IL 60432 Phone: (815) 954-8175 Website: www.andreanoandlyons.comCommunity Involvement: I am the immediate past President of the School Board for the Troy Consolidated 30-C located in Will County - one of the fastest growing counties in Illinois. I am also on the Board of Directors for Guardian Angel Community Services, an agency that was started in 1897 by the Sisters of St. Francis of Mary Immaculate to care for orphaned, dependent and needy children. GACS has grown into a county-wide agency that champions the cause of not only foster children but disadvantaged students, their families and those suffering from the effects of sexual assault and domestic violence.